Opinion
No. 05-50790.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 20, 2007.
Joanna P. Baltes, Esq., USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Holly Sullivan, Esq., Zandra L. Lopez, Esq., FDSD-Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Gordon Thompson, Jr., Senior District Judge, Presiding. D.C. No. CR-04-02955-GT.
Before: KLEINFELD, SILVERMAN, and M. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Domingo Aguilar-Aguilar appeals from the 46-month sentence imposed following his guilty-plea conviction to being a deported alien in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
Aguilar-Aguilar contends that the district court improperly imposed an eight-level increase in his offense level under U.S.S.G. § 2L1.2(b)(1)(C) based on his prior California-state conviction for possession of a controlled substance. Following briefing, he filed a motion for summary reversal, asserting that Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), is intervening controlling authority.
As the district court did not have the benefit of the Supreme Court's decision in Lopez at the time it sentenced Aguilar-Aguilar, we grant the motion, vacate the sentence, and remand for resentencing in accordance with Lopez. See United States v. Figueroa-Ocampo, No. 04-50777, 494 F.3d. 1211, 1217, 2007 WL 2104787, at *5 (9th Cir. July 24, 2007) (vacating and remanding in light of Lopez).
Because we vacate and remand on this basis, we do not address Aguilar-Aguilar's remaining contentions.